Customs, Excise and Gold Tribunal - Delhi
Balrampur Chini Mills Ltd. vs Cce on 14 July, 2004
Equivalent citations: 2004(95)ECC537
JUDGMENT S.S. Kang, Member (J)
1. Heard both sides.
2. The appellant filed this appeal against Order-in-Appeal passed by the Commissioner (Appeals). In the present case the benefit of Modvat credit was denied in respect of Sodium Hydro Sulphide as input and in respect of Speed Motor, EOT Crane and spare parts like Steel Pipes, Elbow etc. as capital goods.
3. The appellant raised the issue of jurisdiction. The show-cause notice was issued by the Superintendent of Central Excise for recovery of Modvat credit under Rule 57-I of Central Excise Rules. The contention of the appellant is that the Superintendent of Central Excise was not competent to issue the notice under Rule 57-I. As per the Board's Circular dated 20.12.88, it is clarified that in respect of wrong availment of Modvat credit, respective adjudicating officers should issue and decide the show-cause notice.
4. The Ld. SDR produced the notification issued under Rule 2 of the Central Excise Rules specifying the proper officer under the Central Excise Rules and for issue of show-cause notice for recovery of wrong availment of Modvat credit under Rule 57-I proper officer is the Supdt. of Central Excise. In view of this notification, I find no force in the arguments of the appellant.
5. On merit the contention of the appellant is that the benefit of Modvat credit in respect of Sodium Hydro Sulphide is denied only on the ground that the invoice was not in the name of the appellant. The contention is that earlier the manufacturer issued the invoice in the name of Balrampur Chini Mills Ltd. unit Balrampur, whereas the credit was taken at their second unit viz. Babhnam. The contention is that subsequently the manufacturer rectified the mistake and the invoice was amended by mentioning the name of the unit where the credit was taken. The appellant also produced the copy of the invoice. In view of the fact that the invoice was in the name of appellants unit, therefore, the appellants are entitled for the credit of Rs. 18,465 in respect of Sodium Hydro Sulphide.
6. In respect of Speed Motors, the appellants are not pressing the claim, therefore, the impugned order in respect of denial of credit on Speed Motor is upheld.
7. In respect of EOT Crane the contention of the appellant is that this crane is used for lifting and fitting of heavy important parts of Turbo Generator Sets installed in the factory. In view of this fact as the EOT Crane is not used in the manufacture or production or processing of the goods, the benefit of Modvat credit is not available. Therefore, the impugned order is upheld in this regard.
8. In respect of Spare Parts like Steel Pipes, Elbow etc. the contention is that these are multiple use items and are used in the boiler and are eligible for credit. The adjudicating authority as well as Commissioner (Appeals) gave a finding of fact that the appellants had not specified the use of these items and the place of use. I find that Hon'ble Supreme Court in the case of CCE, Coimbatore v. Jawahar Mills, 2001 (77) ECC 1 (SC) : 2001 (132) ELT 3 held that capital goods are entitled for the benefit if the same are used with plant or machine if the same are used otherwise the credit is not admissible. In view of this decision of the Supreme Court as the appellant failed to prove the specific use of these items, therefore the credit is rightly denied. The appeal is disposed of as indicated above.